# Shadan Ansari Revisionist v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 816
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-14
- **Bench:** Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shadan-ansari-revisionist-v-state-of-u-p-ors-45702
- **Pages:** 9

## Headnote

A. Criminal Procedure Code, 1973 -
Section 303 & 304 - r/w General Rules
(Criminal), 1977 - Rule 37 - legal aid
provided by Amicus Curiae must be Real
& Effective & meaningful aid to an
accused - as accused also has the right to
fair trial

B. Constitution of India - Art. 21, 22(1),
39A - accused has fundamental right
under Article 22(1) to be defended by the
competent practitioner - Adequate legal
aid - if adequate legal aid has not been
provided to the accused during trial -
same is violative of Article 21.

Amicus Curiae provided by trial court, for
defending revisionist - Examination-in-chief of
P.W. 1 to P.W. 9 conducted before trial court -
Amicus
Curiae
did
not
cross
examine
prosecution witnesses - application u/s 311
Cr.P.C moved by revisionist for recall of the
witnesses to cross-examine prosecution witness
- rejected by the court below - Held - legal aid
provided by Amicus Curiae was not real and
effective - as he denied to cross-examine the
prosecution witnesses - Trial court directed to
recall all the prosecution witnesses & provide
opportunity to the revisionist to cross-examine
them.

Criminal Revision allowed. (E-5)

List of cases cited: -

## Text

816 INDIAN LAW REPORTS ALLAHABAD SERIES
appeal but at the same time, it is the duty
of the court to correct manifest illegality
resulting in gross miscarriage of justice."

13. In absence of anything to show as
to what evidence has not been examined or
the finding of fact recorded by Court
below is perverse or contrary to material
on record, no interference is called for.

14. In view of above, revision lacks
merit. Dismissed.

15. Certify this judgement to the
lower Court immediately.
----------
(2020)1ILR 816

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.01.2020

BEFORE
THE HON'BLE RAJEEV SINGH, J.

Criminal Revision No. 1393 OF 2019

Shadan Ansari ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Bipin Kumar Tiwari

Counsel for the Opposite Parties:
Government Advocate

A. Criminal Procedure Code, 1973 -
Section 303 & 304 - r/w General Rules
(Criminal), 1977 - Rule 37 - legal aid
provided by Amicus Curiae must be Real
& Effective & meaningful aid to an
accused - as accused also has the right to
fair trial

B. Constitution of India - Art. 21, 22(1),
39A - accused has fundamental right
under Article 22(1) to be defended by the
competent practitioner - Adequate legal
aid - if adequate legal aid has not been
provided to the accused during trial -
same is violative of Article 21.

Amicus Curiae provided by trial court, for
defending revisionist - Examination-in-chief of
P.W. 1 to P.W. 9 conducted before trial court -
Amicus
Curiae
did
not
cross
examine
prosecution witnesses - application u/s 311
Cr.P.C moved by revisionist for recall of the
witnesses to cross-examine prosecution witness
- rejected by the court below - Held - legal aid
provided by Amicus Curiae was not real and
effective - as he denied to cross-examine the
prosecution witnesses - Trial court directed to
recall all the prosecution witnesses & provide
opportunity to the revisionist to cross-examine
them.

Criminal Revision allowed. (E-5)

List of cases cited: -

1. Mohd. Hussain & Julfikar Ali Vs The State
(Govt. of NCT) Delhi 2012 (9) SCC 408

2. Manglu Vs St. of UP 2018 SCC OnLine All
5751

3. Anokhilal Vs St. of MP 2019 SCC OnLine SC
1637

(Delivered by Hon'ble Rajeev Singh, J.)

1. Heard learned counsel for the
revisionist and Shri Aniruddh Kumar
Singh, learned A.G.A.

2. This revision has been filed for
quashing of the order dated 21.09.2019
passed
by
Additional
Sessions
Judge/Special
Judge
(POCSO
Act),
Faizabad in Special Session Trial No. 78
of 2018, arising out of F.I.R. No. 76 of
2018, under Sections 376, 506, 377 I.P.C.
and Section 3/4 POCSO Act, P.S. Cantt.,
District Faizabad.

3. Learned counsel for the revisionist
submitted that after investigation, charge
sheet was filed by the Investigating Officer
1 All. Shadan Ansari Vs. State of U.P. & Ors.
817
in F.I.R. No. 76 of 2018 (supra), on which
cognizance was taken by the court below
and thereafter the case was registered as
S.S.T. No. 78 of 2018. After framing of
charges, prosecution was allowed to
produce the witnesses before the trial
court. Learned counsel for the revisionist
further submitted that since the revisionist
was not in a position to engage lawyer, as
a result, Amicus Curiae, for defending the
revisionist, was provided by the trial court
at the State expenses. Examination-inchief of the witnesses of P.W. 1 to P.W. 9
was conducted before the trial court, but
since the opportunity to cross examine
them was not availed by the Amicus
Curiae, as a result, it was closed by the
trial court. He has further submitted that
though in another case, Amicus Curiae
cross-examined the witnesses, but the
same was not real and effective. In such
circumstances, application under Section
311 Cr.P.C. was moved by the revisionist
for recall of the witnesses to crossexamine them, but the same was rejected
by the court below vide impugned order
dated 21st September, 2019 with the
observation that the Amicus Curiae denied
the cross-examination of the prosecution
witnesses on the advise of the revisionist.

4. Next submission of the learned
counsel for the revisionist is that Section
304 Cr.P.C. provides that where, in a trial
before the Court of Session, the accused is
not represented by a pleader, and where it
appears to the Court that the accused has
not sufficient means to engage a pleader,
the Court shall assign a pleader for his
defence at the expense of the State.
Learned
counsel
for
the
revisionist
submitted that the intention of Section 304
Cr.P.C. is for providing real and effective
aid to an accused and it is the duty of the
trial court to ensure proper compliance of
the requirement as the accused also has the
right to fair trial. In support of his
submissions, learned counsel for the
revisionist placed reliance on the decision
of the Hon'ble Apex Court in the case of
Mohd. Hussain & Julfikar Ali Vs. The
State (Govt. of NCT) Delhi, 2012 (9)
SCC 408.

5. Placing reliance on the decision of
a Division Bench of this Court passed in
Criminal Appeal No. 1460 of 2003
(Manglu Vs. State of U.P.), he further
submitted that if the adequate legal aid has
not been provided to the accused during
trial, same is violative of Article 21 of the
Constitution of India. It has, thus, been
submitted that the impugned order is bad
in the eyes of law and is liable to be set
aside. The revisionist may be permitted to
cross-examine the witnesses after recalling
them.

6. Learned A.G.A., Shri Aniruddh
Kumar Singh while opposing the prayer of
the revisionist submitted that there is no
illegality in the order passed by the court
below in rejecting the prayer to recall the
witnesses, as the opportunity to crossexamine them had already been given to
the Amicus Curiae appointed by the trial
court.

7. I have considered the arguments
advanced by the learned counsel for the
parties and gone through the record.

8. It is evident from the impugned
order dated 21.09.2009 itself that the court
below while rejecting the application of
the
revisionist,
observed
that
the
prosecution witnesses were examined
during the course of trial and opportunity
was given to the Amicus Curiae appointed
on his behalf to cross-examine them, but
on the advise of the revisionist, he denied
818 INDIAN LAW REPORTS ALLAHABAD SERIES
for the same. However, by means of the
application moved under Section 311
Cr.P.C., revisionist sought recall of the
prosecution witnesses on the ground that
he was not aware about the crossexamination of the prosecution witnesses.

9. It is also evident that the
revisionist was informed that in all the
three cases, Amicus Curiae was appointed
by the trial court, at the expenses of the
State to do effective pairvi for him, but in
the present case, Amicus Curiae did not
cross-examine the prosecution witnesses
and it cannot be presumed that he did so
on the advice of the revisionist.

10. Section 303 and 304 of the Code
of Criminal Procedure read with Rule 37
of General Rules (Criminal), 1977 framed
by Allahabad High Court clearly provides
for providing legal aid to defend the
accused, which must be real and effective
aid to an accused and it is the duty of the
trial court to ensure proper compliance of
the requirement to fair trial. Now, it is a
fundamental right under Article 22(1) of
the Constitution of India that the accused
has a right to be defended by the
competent practitioner. Hon'ble Apex
Court in the case of Mohd. Hussain &
Julfikar Ali (supra) has clearly held that
it is the duty of the trial court to ensure
proper compliance of the requirement to
fair trial as the accused as a right of being
provided the real and effective legal aid.

11. In the case of Manglu Vs. State
of U.P., 2018 SCC OnLine All 5751, a
Division Bench of this Court already
considered the provisions of Sections 303
and 304 Cr.P.C., Rule 37 of the General
Rules
(Criminal),
1977
framed
by
Allahabad High Court as also Article 22(1)
along with Articles 22 and 39A of the
Constitution of India. Paragraphs 11 to 20
(relevant) are reproduced below:

"11. Before dealing with the
facts relating to the first point raised by
learned amicus curiae, we think it
appropriate to set out the legal provisions
as well as the various judgments of
Hon'ble the Supreme Court on this point.
Article 21 of the Constitution of India runs
as follows:-

"No person shall be deprived of
his
life
or
personal
liberty
except
according to a procedure established by
law."

12. Article 22 (1) of the
Constitution of India is also relevant in
this respect and hence the same is quoted
hereinafter for ready reference:-

"Article 22 in The Constitution
Of India 1949

22. Protection against arrest and
detention in certain cases

(1) No person who is arrested
shall be detained in custody without being
informed, as soon as may be, of the
grounds for such arrest nor shall he be
denied the right to consult, and to be
defended by, a legal practitioner of his
choice

13.
Article
39-A of
the
Constitution of India is also relevant and
thus, the same is also quoted hereinbelow
for ready reference:-

"39A. Equal justice and free
legal aid The State shall secure that the
operation of the legal system promotes
justice, on a basis of equal opportunity,
and shall, in particular, provide free legal
aid, by suitable legislation or schemes or
in any other way, to ensure that
opportunities for securing justice are not
denied to any citizen by reason of
economic or other disabilities."
1 All. Shadan Ansari Vs. State of U.P. & Ors.
819

14. Section 304 of the Code of
Criminal Procedure deals with legal aid to
an accused, who is not represented by any
lawyer and have no means to engage any
lawyer. The aforesaid Section 304 of the
Code of Criminal Procedure runs as
follows:-

"Section 304 in The Code Of
Criminal Procedure, 1973

304. Legal aid to accused at
State expense in certain cases.

(1) Where, in a trial before the
Court of Session, the accused is not
represented by a pleader, and where it
appears to the Court that the accused has
not sufficient means to engage a pleader,
the Court shall assign a pleader for his
defence at the expense of the State.

(2) The High Court may, with
the previous approval of the State
Government, make rules providing for-

(a)
the
mode
of
selecting
pleaders for defence under sub- section
(1);

(b) the facilities to be allowed to
such pleaders by the Courts;

(c) the fees payable to such
pleaders
by
the
Government,
and
generally, for carrying out the purposes of
sub- section (1).

(3) The State Government may,
by notification, direct that, as from such
date
as
may
be
specified
in
the
notification, the provisions of sub- sections
(1) and (2) shall apply in relation to any
class of trials before other Courts in the
State as they apply in relation to trials
before Courts of Session."

15. In this regard, Rule 37 of
General Rules (Criminal), 1977 framed by
Allahabad High Court is also relevant,
thus, the said rule is also quoted
hereinbelow:-

"37. When counsel should be
engaged for accused.

In any case which comes before
a Court of Session, the court may engage
counsel to defend the accused person if -

(a) the charge against him is
such that a capital sentence is possible, and

(b) it appears that he has not
engaged counsel and is not possessed of
for sufficient means to do so.

To enable the Sessions Court to
arrive at a decision as regards the second
condition in the preceding paragraph, the
committing magistrate, shall in such case
make enquiries from the accused at the
time of commitment and after making such
other enquiries as may be necessary, report
within a month of the commitment order
to the court to which the commitment is
made whether the accused is possessed of
sufficient means to engage counsel. Each
case must be decided on its merits and no
hard and fast rule as to insufficiency of
means should be applied. The Sessions
Court in making its decision shall not be
bound by the report of the committing
magistrate.

Counsel appointed under this
rule shall be furnished with the necessary
papers free of cost and allowed sufficient
time to prepare for the defence."

16. It is not out of place to
mention that Rule 37 of the General Rule
(Criminal) 1957 framed by Hon'ble
Allahabad High Court is pari materia the
same of the present Rule 37 of General
Rule (Criminal) 1977.

17. In Bashira vs. State of U.P.
reported in AIR 1968 SC 1313, Hon'ble
the Supreme Court has held that Rule 37
of the General Rule (Criminal) of the
Allahabad High Court 1957 is mandatory
and any violation of the same is violative
of Article 21 of the Constitution of India,
because the trial has not been conducted in
accordance with the procedure established
by law. Accordingly, Hon'ble the Supreme
820 INDIAN LAW REPORTS ALLAHABAD SERIES
Court ordered that in such situation, the
trial will be vitiated. Again the aforesaid
point was considered by a three Judge
Bench of Hon'ble the Supreme Court in
the case of Madhav Hayawadanrao Hoskot
vs. State of Maharashtra reported in 1978
SCC (Cri) 468, and held at paragraph no.
14 that:-

"The other ingredient of fair
procedure to a prisoner, who has to seek
his liberation through the court process is
lawyer's services. Judicial justice, with
procedural intricacies, legal submissions
and critical examination of evidence, leans
upon professional expertise; and a failure
of equal justice under the law is on the
cards where such supportive skill is absent
for one side. Our judicature, moulded by
Anglo-American models and our judicial
process, engineered by kindred legal
technology, compel the collaboration of
lawyer-power or steering the wheels of
equal justice under the law. Free legal
services to the needy is part of the English
criminal justice system. And the American
jurist, Prof. Vance of Yale, sounded sense
for India too when he said(1):

"What does it profit a poor and
ignorant man that he is equal to his strong
antagonist before the law if there is no one
to inform him what the law is ? or that the
courts are open to him on the same terms
as to all other persons when he has not the
wherewithal to pay the admission fee ?"

18. In the case of Hussainara
Khatoon and Ors. vs. Home Secretary,
State of Bihar reported in AIR 1979 SC
1369, Hon'ble Supreme Court has held that
free legal services to indigent and poor
accused is implicit in Article 21 of the
Constitution of India. The following
observation of Hon'ble Supreme Court at
para- 6 of the aforesaid judgment is quoted
hereinbelow:-

"6. .............It is now well settled,
as a result of the decision of this Court in
Maneka Gandhi v. Union of India (1) that
when Article 21 provides that no person
shall be deprived of his life or liberty
except in accordance with the procedure
established by law, it is not enough that
there should be some semblance of
procedure provided by law, but the
procedure under which a person may be
deprived of his life or liberty should be
'reasonable,
fair
and
just'. Now,
a
procedure which does not make available
legal services to an accused person who is
too poor to afford a lawyer and who
would, therefore, have to go through the
trial without legal assistance, cannot
possibly be regarded as 'reasonable fair
and just. It is an essential ingredient of
reasonable, fair and just procedure to a
prisonel who is to seek his liberation
through the court's process that he should
have legal services available to him. This
Court pointed out in M.H. Hoskot v. State
of Maharashtra (2).:"Judicial justice, with
procedural intricacies, legal submissions
and critical examination of evidence, leans
upon professional expertise; and a failure
of equal justice under the law is on the
cards where such supportive skill is absent
for one side. Our judicature, moulded by
Anglo-American models and our judicial
process, engineered by kindred legal
technology, compel the collaboration of
lawyer-power for steering the wheels of
equal justice under the law". Free legal
services to the poor and the needy is an
essential element of any 'reasonable, fair
and just' procedure. It is not necessary to
quote authorative pronouncements by
judges and jurists in support of the view
that without the service of a lawyer an
accused
person
would
be
denied
'reasonable, fair and just' procedure."
1 All. Shadan Ansari Vs. State of U.P. & Ors.
821

19. In the case of Khatri and
Ors. v. State of Bihar reported in AIR
1981 SC 928, Hon'ble the Supreme Court
has held that an accused is entitled to free
legal services when he was first produced
before the Magistrate and it is the duty of
the Magistrate and Sessions Judge to
inform every accused, who appears before
them about their aforesaid legal right.
Paras 4 & 5 of the aforesaid judgment is
quoted hereinbelow:-

"4. That takes us to one other
important issue which arises in this case. It
is clear from the particulars supplied by
the State from the records of the various
judicial magistrates dealing with the
blinded prisoners from time to time that,
neither at the time when the blinded
prisoners were produced for the first time
before the judicial magistrate nor at the
time when the remand orders were passed,
was any legal representation available to
most of the blinded prisoners. The records
of the judicial magistrates show that no
legal representation was provided to the
blinded prisoners, because none of them
asked for it nor did the judicial magistrates
enquire
from
the
blinded
prisoners
produced before them either initially or at
the time of remand whether they wanted
any legal representation at State cost. The
only excuse for not providing legal
representation to the blinded prisoners at
the cost of the State was that none of the
blinded prisoners asked for it. The result
was that barring two or three blinded
prisoners who managed to get a lawyer to
represent them at the later stages of
remand, most of the blinded prisoners
were not represented by any lawyers and
save a few who were released on bail, and
that too after being in jail for quite some
time, the rest of them continued to
languish in jail. It is difficult to understand
how this state of affairs could be permitted
to continue despite the decision of this
Court in Hussainara Khatonn's case. This
Court has pointed out in Hussainara
Khatoon's case (supra) which was decided
as far back as 9th March, 1979 that the
right to free legal services is clearly an
essential ingredient of reasonable, fair and
just procedure for a person accused of an
offence and it must be held implicit in the
guarantee of Article 21 and the State is
under a constitutional mandate to provide
a lawyer to an accused person if the
circumstances of the case and the needs of
justice so require, provided of course the
accused person does not object to the
provision of such lawyer. It is unfortunate
that though this Court declared the right to
legal aid as a Fundamental Right of an
accused person by a process of judicial
construction of Article 21, most of the
States in the country have not taken note
of this decision and provided free legal
services to a person accused of an offence.
We regret this disregard of the decision of
the highest court in the land by many of
the
States
despite
the
constitutional
declaration in Article 141 that the law
declared by this Court shall be binding
through-out the territory of India. Mr. K.
G. Bhagat on behalf of the State agreed
that in view of the decision of this Court
the State was bound to provide free legal
services to an indigent accused but he
suggested that the State might find it
difficulty to do so owing to financial
constraints. We may point out to the State
of
Bihar
that
it
cannot
avoid
its
constitutional obligation to provide free
legal services to a poor accused by
pleading
financial
or
administrative
inability.
The
State
is
under
a
constitutional mandate to provide free
legal aid to an accused person who is
unable to secure legal services on account
of indigenous and whatever is necessary
822 INDIAN LAW REPORTS ALLAHABAD SERIES
for his purpose has to be done by the State.
The
State
may
have
its
financial
constraints and its priorities in expenditure
but, as pointed out by the court in Rhem v.
Malcolm. "The law does not permit any
Government to deprive its citizens of
constitutional rights on a plea of poverty"
and to quote the words of Justice
Blackmum in Jackson vs. Bishop, 404 F.
Supp. 2d, 571: "humane considerations
and constitutional requirements are not in
this day to be measured by dollar
considerations."
Moreover,
this
constitutional obligation to provide free
legal services to an indigent accused does
not arise only when the trial commences
but also attaches when the accused is for
the first time produced before the
magistrate. It is elementary that the
jeopardy to his personal liberty arises as
soon as a person is arrested and produced
before a magistrate, for it is at that stage
that he gets the first opportunity to apply
for bail and obtain his release as also to
resist remand to police or jail custody.
That is the stage at which an accused
person needs competent legal advice and
representation and no procedure can be
said to be reasonable, fair and just which
denies legal advice and representation to
him at this stage. We must, therefore, hold
that the State is under a constitutional
obligation to provide free legal services to
an indigent accused not only at the stage of
trial but also at the stage when he is first
produced before the magistrate as also
when he is remanded from time to time.

5. But even this right to free
legal services would be illusory for an
indigent accused unless the magistrate or
the Sessions Judge before whom he is
produced informs him of such right. It is
common knowledge that about 70 per cent
of the people in the rural areas are illiterate
and even more than that percentage of
people are not aware of the rights
conferred upon them by law. There is so
much lack of legal awareness that it has
always been recognised as one of the
principal items of the programme of the
legal aid movement in this country to
promote legal literacy. It would make a
mockery of legal aid if it were to be left to
a poor ignorant and illiterate accused to
ask for free legal services. Legal aid would
become merely a paper promise and it
would fail of its purpose. The magistrate
or the sessions judge before whom the
accused appears must be held to be under
an obligation to inform the accused that if
he is unable to engage the services of a
lawyer on account of poverty or indigence,
he is entitled to obtain free legal services
at the cost of the State. Unfortunately, the
judicial magistrates failed to discharge this
obligation in the case of the blinded
prisoners and they merely stated that no
legal representation was asked for by the
blinded prisoners and hence none was
provided. We would, therefore, direct the
magistrates and Session Judges in the
country to inform every accused who
appears before them and who is not
represented by a lawyer on account of his
poverty or indigence that he is entitled to
free legal services at the cost of the State.
Unless he is not willing to take advantage
every other State in the country to make
provision for grant of free legal services to
an accused who is unable to engage a
lawyer on account of reasons such as
poverty, indigence or incommunicado
situation. The only qualification would be
that the offence charged against the
accused is such that, on conviction, it
would result in a sentence of imprisonment
and is of such a nature that the
circumstances of the case and the needs of
social justice require that he should be
given free legal representation. There may
1 All. Shadan Ansari Vs. State of U.P. & Ors.
823
be cases involving offences such as
economic offences or offences against law
prohibiting prostitution or child abuse and
the like, where social justice may require
that free legal services need not be
provided by the State."

20. In the cases of Suk Das and
Another v. Union Territory of Arunachal
Pradesh [AIR 1986 SC 991], Tyron
Nazareth v. State of Goa [1994 Supp. (3)
SCC 321] and Mohd. Hussain alias
Zulfikar Ali v. State (Government of NCT
of Delhi) [(2012) 2 SCC 584], Hon'ble the
Supreme Court had reiterated the aforesaid
principle and held that if the adequate
legal aid has not been provided to the
accused during the trial, the same is
violative of Article 21 of the Constitution
of India. Thus, the conviction and sentence
of such accused cannot be sustained."

12. Hon'ble Supreme Court in the
case of Anokhilal Vs. State of Madhya
Pradesh, 2019 SCC OnLine SC 1637,
has held that legal aid provided by the
State
must
be
extended
real
and
meaningful
assistance.
Hon'ble
Apex
Court has also laid down that in all cases
where there is a possibility of life sentence
or death sentence, Advocates, who have
put in minimum 10 years of practice at the
Bar, alone be considered to be appointed
as Amicus Curiae. Relevant paragraphs 33
of the aforesaid judgment is being
reproduced as under:-

"33. Before we part, we must lay
down certain norms so that the infirmities
that we have noticed in the present matter
are not repeated:--

i) In all cases where there is a
possibility of life sentence or death
sentence, learned Advocates who have put
in minimum of 10 years practice at the Bar
alone be considered to be appointed as
Amicus Curiae or through legal services to
represent an accused.

ii) In all matters dealt with by
the High Court concerning confirmation of
death sentence, Senior Advocates of the
Court must first be considered to be
appointed as Amicus Curiae.

iii)
Whenever
any
learned
counsel is appointed as Amicus Curiae,
some reasonable time may be provided to
enable the counsel to prepare the matter.
There cannot be any hard and fast rule in
that behalf. However, a minimum of seven
days' time may normally be considered to
be appropriate and adequate.

iv) Any learned counsel, who is
appointed as Amicus Curiae on behalf of
the accused must normally be granted to
have meetings and discussion with the
concerned accused. Such interactions may
prove to be helpful as was noticed in
Imtiyaz Ramzan Khan."

13. Admittedly, in the present case,
the legal aid provided by the Amicus
Curiae was not real and effective, as he
denied to cross-examine the prosecution
witnesses, therefore, the impugned order
has been passed on the wrong premise and
is liable to be set aside.

14. Trial court is directed to recall all
the
prosecution
witnesses,
whose
examination-in-chief was conducted and
provide opportunity to the revisionist to
cross-examine them.

15. The revision is, accordingly,
allowed. Impugned order dated 21.09.2019
passed
by
Additional
Sessions
Judge/Special
Judge
(POCSO
Act),
Faizabad in Special Session Trial No. 78
of 2018 is hereby quashed.
----------
824 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)1ILR 824

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.12.2019

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Revision No. 4465 OF 2019

Smt. Kalpana @ Pinki & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Radhey Shyam Yadav, Sri Rajiv Lochan
Shukla

Counsel for the Opposite Parties:
A.G.A., Sri Pankaj Satsangi, Sri Sikandar B.
Kochar

A. Criminal Procedure Code, 1973 - Section
227
-
Discharge
Application
-
while
considering petition for discharge - courts
cannot act as appellate court and start
appreciating
evidence
by
finding
out
inconsistencies in statements of witness -
Court cannot appreciate evidence at stage
of framing of charge - Charges can be
framed on the basis of strong suspicion.

Held - Discharge application, to discharge the
revisionists, from the charge framed under
section 306 IPC, is cryptic - material available
on record - makes out a prima facie case -
against the accused - no justifiable ground to
set aside the impugned order refusing the
discharge of the accused (Para 22 & 23)

Criminal Revision dismissed. (E-5)

List of cases cited: -

1. Rajiv Thapar & Ors Vs Madan Lal Kapoor
2013 (3) SCC 330

2. Harshendra Kumar D Vs Rebatilata Koley
2011 AIR (SC) 1090
3. St. represented by Deputy Superintendent of
Police, Vigilance & Anti-Corruption, TN Vs J.
Doraiswamy Ors (2019) 4 SCC 149

4. St. of Bih Vs Ramesh Singh 1977 (4) SCC 39

5. Superintendent and Remembrancer of Legal
Affairs, WB Vs Anil Kumar Bhunja AIR 1980
(SC) 52

6. Palwinder Singh Vs Balvinder Singh AIR 2009
SC 887

7. Sanghi Brothers (Indore) Pvt. Ltd Vs Sanjay
Choudhary AIR 2009 SC 9

8. R.P. Kapur Vs St. of Pun AIR 1960 SC 866

9.St. of Hary Vs Bhajan Lal 1992 SCC(Cr.) 426

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Mr. Sikandar B. Kochar, learned
counsel filed his vakalatnama on behalf of
the opposite party no.2 today in the Court,
is taken on record.

2. Heard Mr. Rajiv Lochan Shukla,
Advocate holding brief of Mr. Radhey
Shyam Yadav, learned counsel for the
revisionists, Mr. Sikandar B. Kochar and
Mr. Pankaj Satsangi, learned counsel for
the opposite party no.2 and Mr. Amit
Singh Chauhan, learned A.G.A. for the
State.

3. This criminal revision under
section 397/401 Cr.P.C. has been preferred
by the revisionists against the impugned
order dated 01.10.2019 passed by Sessions
Judge, court No. 9, Budaun in Sessions
Trial No.148 of 2019 (State vs. Smt.
Kalpana alias Rinki and others) arising out
of Case Crime No. 95 of 2013, under
Section 306 IPC, Police Station- Kotwali,
District- Badaun, whereby the discharge
application
of
the
revisionists
for